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The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA

Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law

March 24, 2012

William & Mary Bill of Rights Journal, Vol. 20, pp. 791-852, 2012

Abstract:

Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements in the United States.

Number of Pages in PDF File: 62

Keywords: burka ban, Freedom of Religion, France, USA, First Amendment, headscarves, employment discrimination, schools, islam, Bill of Rights, Declaration of the Rights of Man and of the Citizen